Will Mixing Of Contraband Samples Violating NDPS Provisions Vitiate Seizure? Supreme Court To Examine
The Supreme Court has decided to examine the impact of mixing the samples drawn from contraband contained in different packages in violation of the provisions of the Narcotic Substances and Psychotropic Substances Act and the rules made thereunder.
The issue arose in a petition filed by the State of Kerala against a judgment of the Kerala High Court granting bail to an accused in an NDPS Act. The fact that the samples of contraband contained in different packages were mixed by the detecting officer led the High Court to form a prima facie opinion that the allegations against the accused would not be sustained. The High Court ruled that the provisions of the NDPS Act and the NDPS (seizure, storage, sampling and disposal) Rules, 2022 regarding the drawing of samples are mandatory and their violation would vitiate the seizure.
The Supreme Court agreed to re-look the judgment of the High Court and issued notice on the State's petition.
"In view of the legal proposition and ratio expounded in the impugned judgment, we are inclined to issue notice," observed a bench comprising Justices Sanjiv Khanna, Sanjay Karol and Sanjay Kumar.
The Court also clarified that the accused will be at liberty to engage a legal aid counsel as the legal issues are being examined.
The Court also requested the assistance of Additional Solicitor General SV Raju on the legal issues. The matter will be next listed in the week commencing from November 11.
What did the High Court rule?
The judgment authored by Justice CS Dias held that it is mandatory for the Investigating Officer to prepare an inventory of the seized substances with all such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars, and then make an application to the Magistrate to permit him to draw the representative samples of such contraband in the presence of the Magistrate so as to certify the correctness of the inventory so prepared.
"If the contraband is found in packages or containers, such packages/containers shall be weighed separately and serially numbered for the purpose of identification and one sample, in duplicate, shall be drawn from each package/container seized," the Court stated.
The judgment referred to Section 52A of the NDPS Act, Rule 3 & 10 of the NDPS (seizure, storage, sampling and disposal) Rules 2022 and several Supreme Court precedents such as Mangilal vs State Of Madhya Pradesh | 2023 LiveLaw (SC) 549, Simarnjit Singh v. State of Punjab 2023 LiveLaw (SC) 570, Yusuf @ Asif V. State 2023 LiveLaw (SC) 890.
The Court noted that in this case, the contraband was seized separately by the Detecting Officer from the bodies of accused 1 and 2 in two separate covers. He then mixed the contraband without the permission of the Magistrate and put them in one cover without drawing the representative samples from the two covers. It was the sample that was drawn from the one cover, that was sent for chemical analysis in total contravention of the law.
"When the statutory provisions mandate a particular procedure to be followed, the Detecting Officer is duty-bound to follow the prescribed procedure. No person can assume the nature of the substance on speculation and conjectures," the Court said.
Case Title : State of Kerala v. Vaisakh | Petition for Special Leave to Appeal (Crl.) No. 8556/2024